Term of Services
Upside Terms of Service
Last Updated Date: September 27, 2022
WELCOME TO UPSIDE! PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY. THIS WEBSITE AND ANY OTHER WEBSITES OR MOBILE APPLICATIONS OF INDY FINANCIAL, INC. , (D/B/A UPSIDE FINANCIAL, INC.) (“UPSIDE”) ITS AFFILIATES OR AGENTS (“COMPANY”, “WE” OR “US”), THAT LINK TO THESE TERMS OF USE (COLLECTIVELY, THE “WEBSITE”) AND THE INFORMATION ON IT ARE CONTROLLED BY COMPANY. THESE TERMS OF USE GOVERN THE USE OF THE WEBSITE AND APPLY TO ALL INTERNET USERS VISITING THE WEBSITE OR ACCESSING OR USING THE WEBSITE IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE (COLLECTIVELY, THE “SERVICES”). BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR BROWSING THE WEBSITE, YOU REPRESENT THAT (1) YOU, HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH COMPANY, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY.IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.
If you are approved to participate in the Loan Services and elect to become our client, you will be subject to these Terms of Use, our separate Client Agreement, our Privacy Policy and any additional terms to which you agree.
PLEASE BE AWARE THAT SECTION 10 OF THIS TERMS OF USE AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS TERMS OF USE. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
PLEASE BE AWARE THAT SECTION 2.3 OF THIS AGREEMENT CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING TEXT MESSAGES.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Terms.”
PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY COMPANY IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Company will make a new copy of the Terms of Use available at the Website and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website. We will also update the “Last Updated” date at the top of the Terms of Use, which will also be the Effective Date” for any changes. Company may require you to provide consent to the updated Terms in a specified manner before further use of the Website and/ or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), Company may, at its discretion, require you to stop using the Website and/or the Services. Otherwise, your continued use of the Website and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
1. Company Services.
1.1 Generally.The Company Services offer applicants (the “Applicants”) the ability to apply to refinance his/her student loans and participate in the Company’s investment services (the “Loan Services”). During the application process, the Company will ask Applicants questions, run checks based on those responses, and populate student loan re-financing options that may be of interest to each Applicant. We partner with lenders from financial institutions, including certain of our subsidiaries (“Third-Party Lenders”), to provide you with the loans. We are not a financial institution (i.e., we are not a bank or a lender); however, some of our subsidiaries are financial institutions.
1.2 No Guarantees for Applicants.
USE OF OUR SERVICES DOES NOT GUARANTEE THAT APPLICANT WILL QUALIFY FOR A LOAN REFINANCE, AND/OR THAT AN APPLICANT WILL BE APPROVED FOR A LOAN IN A CERTAIN AMOUNT. IN ORDER TO SEE IF YOU, AS AN APPLICANT, QUALIFY FOR A LOAN, THE COMPANY WILL ASK YOU FOR CERTAIN HISTORICAL AND FINANCIAL INFORMATION WHICH WE MAY SHARE WITH POTENTIAL THIRD-PARTY LENDERS. BY SUBMITTING RESPONSES TO SUCH INFORMATION, YOU ACKNOWLEDGE AND AGREE THAT WE MAY PERFORM, AND/OR USE SUCH INFORMATION TO HAVE ONE (1) OR MORE CONSUMER REPORTING AGENCIES AND/OR OTHER ELIGIBILITY VERIFICATION AGENCIES OR SERVICES (EACH, A “CRA”) PERFORM A CREDIT CHECK, VERIFICATION OF INCOME, AND/OR VERIFICATION OF EMPLOYMENT (COLLECTIVELY, A “CONSUMER REPORT”), AND THAT AN APPLICANT’S CONSUMER REPORT MAY BE USED TO VERIFY YOUR ELIGIBILITY FOR THE LOAN FOR WHICH YOU HAVE APPLIED AND REPORTS FROM OTHER THIRD-PARTY SERVICES MAY BE USED TO CONFIRM YOUR IDENTITY TO AVOID FRAUDULENT TRANSACTIONS IN YOUR NAME.
(a) Application Data.In completing and submitting an application to participate in the Loan Services, Applicants agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Company; and (2) maintain and promptly update any such data or information, as necessary, to keep it true, accurate, current and complete. If any information you, as the Applicant, provide is untrue, inaccurate, not current or incomplete, we have the right to terminate your loan application and/or your access to the Services. In addition, you, as the Applicant, agree to notify us if any changes in any application data is required to be made. When you submit an application for the Loan Services, you agree to cooperate in the application process, including by submitting all required documentation in a timely manner, and if needed, you agree that we may obtain information we may need from third parties. As the Applicant, you acknowledge and agree that our ability to facilitate the processing and closing of your loan(s) and participation in the Loan Services depends on such cooperation.
(b) Approvals / Consumer Reports.The ultimate decision as to whether any individual may be approved for a loan is solely within each Third-Party Lender’s discretion. As the Applicant, you acknowledge and agree that, as between Company and the Third-Party Lender, the Third-Party Lender is solely responsible for any decisions about approving a loan. As the Applicant, you acknowledge and agree that, as between Company and the CRA, the CRA is solely responsible for each Consumer Report and the content thereof, including the accuracy, completeness, timeliness and reliability thereof. COMPANY DOES NOT PROVIDE AND THEREFORE IS NOT RESPONSIBLE FOR ANY CONSUMER REPORTS ISSUED OR GENERATED BY ANY CRAs.
(c) Sharing of Information with Lenders.Applicants agree that we may disclose, exchange and otherwise provide to our Third-Party Lenders any and all information collected by us for the purpose of evaluating your ability to qualify for a loan. For more information about our information collection, use, and disclosure practices, please visit our privacy policy, available at www.upsidefi.com/privacyPolicy
2. Registration.
2.1 Registering Your Account.In order to access certain features of Services you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a user who has registered an account on the Website (“Account”).
2.2 Registration Data.In registering an Account with the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the registration form (the“Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) of legal age to form a binding contract; and (ii) not a person barred from using the Website or Services (collectively, the“Company Properties”) under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time.
2.3 Necessary Equipment and Software.
You must provide all equipment and software necessary to connect to the Services. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Services. By providing your cellphone number and using the Services, you hereby affirmatively consent to our use of your cellphone number for texts in order to provide the Services, including alerts when an Applicant participates in certain activities through their use of the Services. Company will not assess and charge for any texts, but standard message charges or other charges from your wireless carrier may apply. IF YOU WISH TO OPT OUT OF RECEIVING TEXT MESSAGES FROM US, YOU MAY LOG IN TO YOUR ACCOUNT AND UPDATE YOUR ACCOUNT SETTINGS. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS MAY IMPACT YOUR USE OF THE COMPANY PROPERTIES OR RELATED SERVICES.
3. Ownership.
3.1 Company Properties.
Except with respect to the information or data you submit through the Services (collectively, “Your Data”), you agree that Company and its suppliers own all rights, title and interest in Company Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying Company Properties.
3.2 License to Your Data.Subject to any applicable Account settings that you select, you grant Company a fully paid, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right and license to use, distribute, and reproduce Your Data (in whole or in part) for the purposes of operating and providing the Services. You agree that you, not Company, are responsible for all of Your Data that you make available on or in Company Properties.
3.3 Feedback.
You agree that submission of any ideas, suggestions, criticisms, documents, and/or proposals to Company through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Company has no obligation (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Company Properties.
4. User Conduct.
You agree that you will not, under any circumstances:
(a) Impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(b) Attempt to access or use another user’s Account without authorization;
(c) Create or use a false identity;(d) Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court;
(e) Make available any data, information, or content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights;
(f) Interfere or attempt to interfere with the proper functioning of Company Properties or connect to or use Company Properties in any way not expressly permitted by the Terms;
(g) Systematically retrieve data or other content from our Company Properties to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, spiders, or otherwise;
(h) Use, display, mirror or frame Company Properties, or any individual element within Company Properties, Company’s name, any Company trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Company’s express written consent;
(i) Use any unauthorized software that accesses, intercepts, “mines” or otherwise collects information from or through Company Properties or that is in transit from or to Company Properties, including, but not limited to, any software that reads areas of RAM or streams of network traffic used by Company Properties;
(j) Use, facilitate, create, or maintain any unauthorized connection to Company Properties, including, but not limited to: (i) any connection to any unauthorized server that emulates, or attempts to emulate, any part of Company Properties; or (ii) any connection using programs, tools or software not expressly approved by Company;
(k) Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software, algorithms, financial models, proprietary calculations or other intellectual property used to provide Company Properties, or to obtain any information from Company Properties;
(l) Engage in any activities that we find to be objectionable in our sole discretion;
(m) Upload, post, e-mail, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
5. Indemnification.
You agree to indemnify and hold Company, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Company Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Data, including any inaccuracies therein; (b) your use of, or inability to use, Company Properties; (c) your violation of the Terms; (d) your violation of any rights of another party; (e) your violation of any applicable laws, rules or regulations; or (f) your breach of violation of any loan agreement to which you are bound. Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Company in asserting any available defenses. This provision does not require you to indemnify any of the Company Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to Company Properties.
6. Disclaimer of Warranties and Conditions.
6.1 As Is.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF COMPANY PROPERTIES IS AT YOUR SOLE RISK, AND COMPANY PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. COMPANY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE OR SERVICES.
(a) COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) COMPANY PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF COMPANY PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF COMPANY PROPERTIES WILL BE ACCURATE OR RELIABLE.
(b) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. COMPANY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(c) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR THROUGH COMPANY PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(d) FROM TIME TO TIME, COMPANY MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT COMPANY’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
6.2 NO LIABILITY FOR CONDUCT OF THIRD PARTIES.
YOU ACKNOWLEDGE AND AGREE THAT COMPANY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD COMPANY PARTIES LIABLE, FOR THE CONDUCT OR INFORMATION OF THIRD PARTIES, INCLUDING BUT NOT LIMITED TO OTHER USERS OR THIRD-PARTY LENDERS. WE ARE NOT LIABLE FOR THE ACCURACY OR QUALITY OF ANY THIRD-PARTY SERVICES OR INFORMATION.
7. LIMITATION OF LIABILITY.
7.1 DISCLAIMER OF CERTAIN DAMAGES.YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL COMPANY PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH COMPANY PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF COMPANY PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE COMPANY PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH COMPANY PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON COMPANY PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO COMPANY PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
7.2 CAP ON LIABILITY.
UNDER NO CIRCUMSTANCES WILL COMPANY PARTIES BE LIABLE TO YOU FOR MORE THAN ONE HUNDRED U.S. DOLLARS ($100). THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
7.3 BASIS OF THE BARGAIN.THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
8. Remedies.
8.1 Violations.If Company becomes aware of any possible violations by you of the Terms, Company reserves the right to investigate such violations. If, as a result of the investigation, Company believes that criminal activity has occurred, Company reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Company is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Company Properties, including Your Data, in Company’s possession in connection with your use of Company Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to any claims that Your Data violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of Company, its Users or the public, and all enforcement or other government officials, as Company in its sole discretion believes to be necessary or appropriate.
8.2 Breach.In the event that Company determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for Company Properties, Company reserves the right to:
(a) Warn you via e-mail (to any e-mail address you have provided to Company) that you have violated the Terms;(b) Delete any of Your Data provided to Company Properties;
(c) Discontinue your access to any Services;
(d) Notify and/or send Your Data to and/or fully cooperate with the proper law enforcement authorities for further action;
(e) File a report with appropriate CRAs; and/or
(f) Pursue any other action which Company deems to be appropriate.
9. Term and Termination.
9.1 Term.
The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Company Properties, unless terminated earlier in accordance with the Terms.
9.2 Prior Use.Notwithstanding the foregoing, if you used Company Properties prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used Company Properties (whichever is earlier) and will remain in full force and effect while you use Company Properties, unless earlier terminated in accordance with the Terms.
9.3 Termination of Services by Company.
The Terms commence on the date when you accept them (as If you have materially breached any provision of the Terms, or if Company is required to do so by law (e.g., where the provision of the Website or the Services is, or becomes, unlawful), Company has the right to, immediately and without notice, suspend or terminate any Services provided to you, and take any action as set forth in Section 8.2. You agree that all terminations shall be made in Company’s sole discretion and that Company shall not be liable to you or any third party for any termination of your Account, including any requirement with respect to any potential Third-Party Lender. Notwithstanding the foregoing, any termination of the Terms shall not affect any separate written agreement that you may have entered into with a third party related to the Services described herein.
9.4 Termination of Services by You.
THE SERVICES WILL CONTINUE UNTIL TERMINATED BY US OR BY YOU IN ACCORDANCE WITH THIS SECTION 9. If you want to terminate the Services provided by Company, you may not do so until you have paid the loan in full and request to liquidate all invested assets and withdraw a cash balance. At that point, you may terminate the Services by closing your Account for all of the Services that you use.
9.5 Effect of Termination.Termination of any Service includes removal of access to such Service and barring of further use of the Service. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Data associated therewith from our live databases. Company will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Data. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
9.6 No Subsequent Registration.If your registration(s) with or ability to access Company Properties, or any other Company community is discontinued by Company due to your violation of any portion of the Terms, then you agree that you shall not attempt to re-register with or access Company Properties or any Company community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Company Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Company reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
10. Dispute Resolution.
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Company and limits the manner in which you can seek relief from us.
10.1 Applicability of Arbitration Agreement.
You agree that any dispute or claim relating in any way to your access or use of the Website and/or Services, or to any aspect of your relationship with Company, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or Company may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
10.2 Arbitration Rules and Forum.The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to: 1633 W Innovation Way, 5th Floor, Lehi, UT 84043. Arbitration shall be administered by the American Arbitration Association and not in a court of law, in accordance with its Arbitration Rules & Procedures, effective at the time a claim is made. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the jurisdiction where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
10.3 Authority of Arbitrator.The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Company. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
10.4 Waiver of Jury Trial.
YOU AND COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Company are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 10.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
10.5 Waiver of Class or Other Non-Individualized Relief.
ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the State or Federal Courts located in Dallas, Texas. All other claims shall be arbitrated.
10.6 30-Day Right to Opt Out.You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out by sending an email to arbitration@upsidefi.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Company account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement, such as “I opt out of arbitration”. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
10.7 Severability.
Except as provided in subsection 10.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
10.8 Survival of Agreement.
This Arbitration Agreement will survive the termination of your relationship with Company.
10.9 Modification.
Notwithstanding any provision in this Agreement to the contrary, we agree that if Company makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by sending Company an email to arbitration@upsidefi.com.
11. General Provisions.
11.1 Electronic Communications.The communications between you and Company use electronic means, whether you visit Company Properties or send Company e-mails, or whether Company posts notices on Company Properties or communicates with you via e-mail or text message. For contractual purposes, you (1) consent to receive communications from Company in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
11.2 Release.
You hereby release Company Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage that is either directly or indirectly related to or arises from your acts or omissions under your loan agreement, or any dispute between you and your Third-Party Lender and/or your use of the Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Company Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.
11.3 Assignment.
The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
11.4 Force Majeure.
Company shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, pandemics, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials
11.5 Questions, Complaints, Claims.If you have any questions, complaints or claims with respect to Company Properties, please contact us at: concerns@upsidefi.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
11.6 Exclusive Venue.
To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Company agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Dallas, Texas.
11.7 Governing Law.
THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF TEXAS, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THESE TERMS.
11.8 Notice.
Where Company requires that you provide an e-mail address, you are responsible for providing Company with your most current e-mail address. In the event that the last e-mail address you provided to Company is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Company at the following e-mail address: notice@upsidefi.com. Notice shall be deemed to have been duly given on the first business day following successful e-mail transmission to Company.
11.9 Waiver.
Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11.10 Severability.
If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect. If a decision is issued stating that applicable law precludes enforcement of Section 10 of this Agreement, all claims and disputes outside the scope of the arbitration agreement must be brought on an individual basis and not on a class or collective basis. Only individual relief is available, and claims of more than one customer or user cannot be consolidated with those of any other customer or user.
11.11 Entire Agreement.
The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
Last Updated Date: September 27, 2022
WELCOME TO UPSIDE! PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY. THIS WEBSITE AND ANY OTHER WEBSITES OR MOBILE APPLICATIONS OF INDY FINANCIAL, INC. , (D/B/A UPSIDE FINANCIAL, INC.) (“UPSIDE”) ITS AFFILIATES OR AGENTS (“COMPANY”, “WE” OR “US”), THAT LINK TO THESE TERMS OF USE (COLLECTIVELY, THE “WEBSITE”) AND THE INFORMATION ON IT ARE CONTROLLED BY COMPANY. THESE TERMS OF USE GOVERN THE USE OF THE WEBSITE AND APPLY TO ALL INTERNET USERS VISITING THE WEBSITE OR ACCESSING OR USING THE WEBSITE IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE (COLLECTIVELY, THE “SERVICES”). BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR BROWSING THE WEBSITE, YOU REPRESENT THAT (1) YOU, HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH COMPANY, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY.IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.
If you are approved to participate in the Loan Services and elect to become our client, you will be subject to these Terms of Use, our separate Client Agreement, our Privacy Policy and any additional terms to which you agree.
PLEASE BE AWARE THAT SECTION 10 OF THIS TERMS OF USE AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS TERMS OF USE. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
PLEASE BE AWARE THAT SECTION 2.3 OF THIS AGREEMENT CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING TEXT MESSAGES.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Terms.”
PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY COMPANY IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Company will make a new copy of the Terms of Use available at the Website and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website. We will also update the “Last Updated” date at the top of the Terms of Use, which will also be the Effective Date” for any changes. Company may require you to provide consent to the updated Terms in a specified manner before further use of the Website and/ or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), Company may, at its discretion, require you to stop using the Website and/or the Services. Otherwise, your continued use of the Website and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
1. Company Services.
1.1 Generally.The Company Services offer applicants (the “Applicants”) the ability to apply to refinance his/her student loans and participate in the Company’s investment services (the “Loan Services”). During the application process, the Company will ask Applicants questions, run checks based on those responses, and populate student loan re-financing options that may be of interest to each Applicant. We partner with lenders from financial institutions, including certain of our subsidiaries (“Third-Party Lenders”), to provide you with the loans. We are not a financial institution (i.e., we are not a bank or a lender); however, some of our subsidiaries are financial institutions.
1.2 No Guarantees for Applicants.
USE OF OUR SERVICES DOES NOT GUARANTEE THAT APPLICANT WILL QUALIFY FOR A LOAN REFINANCE, AND/OR THAT AN APPLICANT WILL BE APPROVED FOR A LOAN IN A CERTAIN AMOUNT. IN ORDER TO SEE IF YOU, AS AN APPLICANT, QUALIFY FOR A LOAN, THE COMPANY WILL ASK YOU FOR CERTAIN HISTORICAL AND FINANCIAL INFORMATION WHICH WE MAY SHARE WITH POTENTIAL THIRD-PARTY LENDERS. BY SUBMITTING RESPONSES TO SUCH INFORMATION, YOU ACKNOWLEDGE AND AGREE THAT WE MAY PERFORM, AND/OR USE SUCH INFORMATION TO HAVE ONE (1) OR MORE CONSUMER REPORTING AGENCIES AND/OR OTHER ELIGIBILITY VERIFICATION AGENCIES OR SERVICES (EACH, A “CRA”) PERFORM A CREDIT CHECK, VERIFICATION OF INCOME, AND/OR VERIFICATION OF EMPLOYMENT (COLLECTIVELY, A “CONSUMER REPORT”), AND THAT AN APPLICANT’S CONSUMER REPORT MAY BE USED TO VERIFY YOUR ELIGIBILITY FOR THE LOAN FOR WHICH YOU HAVE APPLIED AND REPORTS FROM OTHER THIRD-PARTY SERVICES MAY BE USED TO CONFIRM YOUR IDENTITY TO AVOID FRAUDULENT TRANSACTIONS IN YOUR NAME.
(a) Application Data.In completing and submitting an application to participate in the Loan Services, Applicants agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Company; and (2) maintain and promptly update any such data or information, as necessary, to keep it true, accurate, current and complete. If any information you, as the Applicant, provide is untrue, inaccurate, not current or incomplete, we have the right to terminate your loan application and/or your access to the Services. In addition, you, as the Applicant, agree to notify us if any changes in any application data is required to be made. When you submit an application for the Loan Services, you agree to cooperate in the application process, including by submitting all required documentation in a timely manner, and if needed, you agree that we may obtain information we may need from third parties. As the Applicant, you acknowledge and agree that our ability to facilitate the processing and closing of your loan(s) and participation in the Loan Services depends on such cooperation.
(b) Approvals / Consumer Reports.The ultimate decision as to whether any individual may be approved for a loan is solely within each Third-Party Lender’s discretion. As the Applicant, you acknowledge and agree that, as between Company and the Third-Party Lender, the Third-Party Lender is solely responsible for any decisions about approving a loan. As the Applicant, you acknowledge and agree that, as between Company and the CRA, the CRA is solely responsible for each Consumer Report and the content thereof, including the accuracy, completeness, timeliness and reliability thereof. COMPANY DOES NOT PROVIDE AND THEREFORE IS NOT RESPONSIBLE FOR ANY CONSUMER REPORTS ISSUED OR GENERATED BY ANY CRAs.
(c) Sharing of Information with Lenders.Applicants agree that we may disclose, exchange and otherwise provide to our Third-Party Lenders any and all information collected by us for the purpose of evaluating your ability to qualify for a loan. For more information about our information collection, use, and disclosure practices, please visit our privacy policy, available at www.upsidefi.com/privacyPolicy
2. Registration.
2.1 Registering Your Account.In order to access certain features of Services you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a user who has registered an account on the Website (“Account”).
2.2 Registration Data.In registering an Account with the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the registration form (the“Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) of legal age to form a binding contract; and (ii) not a person barred from using the Website or Services (collectively, the“Company Properties”) under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time.
2.3 Necessary Equipment and Software.
You must provide all equipment and software necessary to connect to the Services. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Services. By providing your cellphone number and using the Services, you hereby affirmatively consent to our use of your cellphone number for texts in order to provide the Services, including alerts when an Applicant participates in certain activities through their use of the Services. Company will not assess and charge for any texts, but standard message charges or other charges from your wireless carrier may apply. IF YOU WISH TO OPT OUT OF RECEIVING TEXT MESSAGES FROM US, YOU MAY LOG IN TO YOUR ACCOUNT AND UPDATE YOUR ACCOUNT SETTINGS. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS MAY IMPACT YOUR USE OF THE COMPANY PROPERTIES OR RELATED SERVICES.
3. Ownership.
3.1 Company Properties.
Except with respect to the information or data you submit through the Services (collectively, “Your Data”), you agree that Company and its suppliers own all rights, title and interest in Company Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying Company Properties.
3.2 License to Your Data.Subject to any applicable Account settings that you select, you grant Company a fully paid, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right and license to use, distribute, and reproduce Your Data (in whole or in part) for the purposes of operating and providing the Services. You agree that you, not Company, are responsible for all of Your Data that you make available on or in Company Properties.
3.3 Feedback.
You agree that submission of any ideas, suggestions, criticisms, documents, and/or proposals to Company through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Company has no obligation (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Company Properties.
4. User Conduct.
You agree that you will not, under any circumstances:
(a) Impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(b) Attempt to access or use another user’s Account without authorization;
(c) Create or use a false identity;(d) Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court;
(e) Make available any data, information, or content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights;
(f) Interfere or attempt to interfere with the proper functioning of Company Properties or connect to or use Company Properties in any way not expressly permitted by the Terms;
(g) Systematically retrieve data or other content from our Company Properties to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, spiders, or otherwise;
(h) Use, display, mirror or frame Company Properties, or any individual element within Company Properties, Company’s name, any Company trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Company’s express written consent;
(i) Use any unauthorized software that accesses, intercepts, “mines” or otherwise collects information from or through Company Properties or that is in transit from or to Company Properties, including, but not limited to, any software that reads areas of RAM or streams of network traffic used by Company Properties;
(j) Use, facilitate, create, or maintain any unauthorized connection to Company Properties, including, but not limited to: (i) any connection to any unauthorized server that emulates, or attempts to emulate, any part of Company Properties; or (ii) any connection using programs, tools or software not expressly approved by Company;
(k) Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software, algorithms, financial models, proprietary calculations or other intellectual property used to provide Company Properties, or to obtain any information from Company Properties;
(l) Engage in any activities that we find to be objectionable in our sole discretion;
(m) Upload, post, e-mail, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
5. Indemnification.
You agree to indemnify and hold Company, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Company Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Data, including any inaccuracies therein; (b) your use of, or inability to use, Company Properties; (c) your violation of the Terms; (d) your violation of any rights of another party; (e) your violation of any applicable laws, rules or regulations; or (f) your breach of violation of any loan agreement to which you are bound. Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Company in asserting any available defenses. This provision does not require you to indemnify any of the Company Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to Company Properties.
6. Disclaimer of Warranties and Conditions.
6.1 As Is.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF COMPANY PROPERTIES IS AT YOUR SOLE RISK, AND COMPANY PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. COMPANY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE OR SERVICES.
(a) COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) COMPANY PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF COMPANY PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF COMPANY PROPERTIES WILL BE ACCURATE OR RELIABLE.
(b) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. COMPANY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(c) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR THROUGH COMPANY PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(d) FROM TIME TO TIME, COMPANY MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT COMPANY’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
6.2 NO LIABILITY FOR CONDUCT OF THIRD PARTIES.
YOU ACKNOWLEDGE AND AGREE THAT COMPANY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD COMPANY PARTIES LIABLE, FOR THE CONDUCT OR INFORMATION OF THIRD PARTIES, INCLUDING BUT NOT LIMITED TO OTHER USERS OR THIRD-PARTY LENDERS. WE ARE NOT LIABLE FOR THE ACCURACY OR QUALITY OF ANY THIRD-PARTY SERVICES OR INFORMATION.
7. LIMITATION OF LIABILITY.
7.1 DISCLAIMER OF CERTAIN DAMAGES.YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL COMPANY PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH COMPANY PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF COMPANY PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE COMPANY PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH COMPANY PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON COMPANY PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO COMPANY PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
7.2 CAP ON LIABILITY.
UNDER NO CIRCUMSTANCES WILL COMPANY PARTIES BE LIABLE TO YOU FOR MORE THAN ONE HUNDRED U.S. DOLLARS ($100). THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
7.3 BASIS OF THE BARGAIN.THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
8. Remedies.
8.1 Violations.If Company becomes aware of any possible violations by you of the Terms, Company reserves the right to investigate such violations. If, as a result of the investigation, Company believes that criminal activity has occurred, Company reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Company is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Company Properties, including Your Data, in Company’s possession in connection with your use of Company Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to any claims that Your Data violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of Company, its Users or the public, and all enforcement or other government officials, as Company in its sole discretion believes to be necessary or appropriate.
8.2 Breach.In the event that Company determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for Company Properties, Company reserves the right to:
(a) Warn you via e-mail (to any e-mail address you have provided to Company) that you have violated the Terms;(b) Delete any of Your Data provided to Company Properties;
(c) Discontinue your access to any Services;
(d) Notify and/or send Your Data to and/or fully cooperate with the proper law enforcement authorities for further action;
(e) File a report with appropriate CRAs; and/or
(f) Pursue any other action which Company deems to be appropriate.
9. Term and Termination.
9.1 Term.
The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Company Properties, unless terminated earlier in accordance with the Terms.
9.2 Prior Use.Notwithstanding the foregoing, if you used Company Properties prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used Company Properties (whichever is earlier) and will remain in full force and effect while you use Company Properties, unless earlier terminated in accordance with the Terms.
9.3 Termination of Services by Company.
The Terms commence on the date when you accept them (as If you have materially breached any provision of the Terms, or if Company is required to do so by law (e.g., where the provision of the Website or the Services is, or becomes, unlawful), Company has the right to, immediately and without notice, suspend or terminate any Services provided to you, and take any action as set forth in Section 8.2. You agree that all terminations shall be made in Company’s sole discretion and that Company shall not be liable to you or any third party for any termination of your Account, including any requirement with respect to any potential Third-Party Lender. Notwithstanding the foregoing, any termination of the Terms shall not affect any separate written agreement that you may have entered into with a third party related to the Services described herein.
9.4 Termination of Services by You.
THE SERVICES WILL CONTINUE UNTIL TERMINATED BY US OR BY YOU IN ACCORDANCE WITH THIS SECTION 9. If you want to terminate the Services provided by Company, you may not do so until you have paid the loan in full and request to liquidate all invested assets and withdraw a cash balance. At that point, you may terminate the Services by closing your Account for all of the Services that you use.
9.5 Effect of Termination.Termination of any Service includes removal of access to such Service and barring of further use of the Service. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Data associated therewith from our live databases. Company will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Data. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
9.6 No Subsequent Registration.If your registration(s) with or ability to access Company Properties, or any other Company community is discontinued by Company due to your violation of any portion of the Terms, then you agree that you shall not attempt to re-register with or access Company Properties or any Company community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Company Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Company reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
10. Dispute Resolution.
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Company and limits the manner in which you can seek relief from us.
10.1 Applicability of Arbitration Agreement.
You agree that any dispute or claim relating in any way to your access or use of the Website and/or Services, or to any aspect of your relationship with Company, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or Company may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
10.2 Arbitration Rules and Forum.The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to: 1633 W Innovation Way, 5th Floor, Lehi, UT 84043. Arbitration shall be administered by the American Arbitration Association and not in a court of law, in accordance with its Arbitration Rules & Procedures, effective at the time a claim is made. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the jurisdiction where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
10.3 Authority of Arbitrator.The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Company. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
10.4 Waiver of Jury Trial.
YOU AND COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Company are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 10.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
10.5 Waiver of Class or Other Non-Individualized Relief.
ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the State or Federal Courts located in Dallas, Texas. All other claims shall be arbitrated.
10.6 30-Day Right to Opt Out.You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out by sending an email to arbitration@upsidefi.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Company account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement, such as “I opt out of arbitration”. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
10.7 Severability.
Except as provided in subsection 10.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
10.8 Survival of Agreement.
This Arbitration Agreement will survive the termination of your relationship with Company.
10.9 Modification.
Notwithstanding any provision in this Agreement to the contrary, we agree that if Company makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by sending Company an email to arbitration@upsidefi.com.
11. General Provisions.
11.1 Electronic Communications.The communications between you and Company use electronic means, whether you visit Company Properties or send Company e-mails, or whether Company posts notices on Company Properties or communicates with you via e-mail or text message. For contractual purposes, you (1) consent to receive communications from Company in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
11.2 Release.
You hereby release Company Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage that is either directly or indirectly related to or arises from your acts or omissions under your loan agreement, or any dispute between you and your Third-Party Lender and/or your use of the Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Company Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.
11.3 Assignment.
The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
11.4 Force Majeure.
Company shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, pandemics, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials
11.5 Questions, Complaints, Claims.If you have any questions, complaints or claims with respect to Company Properties, please contact us at: concerns@upsidefi.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
11.6 Exclusive Venue.
To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Company agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Dallas, Texas.
11.7 Governing Law.
THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF TEXAS, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THESE TERMS.
11.8 Notice.
Where Company requires that you provide an e-mail address, you are responsible for providing Company with your most current e-mail address. In the event that the last e-mail address you provided to Company is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Company at the following e-mail address: notice@upsidefi.com. Notice shall be deemed to have been duly given on the first business day following successful e-mail transmission to Company.
11.9 Waiver.
Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11.10 Severability.
If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect. If a decision is issued stating that applicable law precludes enforcement of Section 10 of this Agreement, all claims and disputes outside the scope of the arbitration agreement must be brought on an individual basis and not on a class or collective basis. Only individual relief is available, and claims of more than one customer or user cannot be consolidated with those of any other customer or user.
11.11 Entire Agreement.
The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.